On September 6, 2016, Justice Singh of the New York County Commercial Division issued a decision in 384 Columbus Ave. Associates, LLC v. 101 W. 78th, LLC, 2016 NY Slip Op. 31671(U), declining to dismiss a constructive eviction claim, explaining:
A cause of action for constructive eviction is governed by a one-year statute of limitations contained in CPLR § 215. The Statute of Limitations of this claim begins to run at such time that it is reasonably certain that the tenant has been unequivocally removed with at least the implicit denial of any right to return. The date that tenant was evicted cannot be determined on the record before this court as a matter of law.
Landlord argues that tenant was evicted in November 2014, when the scaffolding was erected and the lease was allegedly breached. However, by the landlord’s own admission, tenant was allowed to continue using the space as a restaurant until the surrender agreement was executed, on December 21, 2015. As there is an issue of fact as to when the eviction occurred, defendant’s motion to dismiss is denied.
Defendant also argues that ev~n if the Statute of Limitations is not met, the motion to dismiss should still be granted based upon the unreasonable delay of tenant to vacate the premises. A constructive eviction exists where, although there has been no physical expulsion or exclusion of the tenant, the landlord’s wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises. To be an eviction, constructive or actual, there must be a wrongful act by the landlord. Here, landlord erected a hoist in front of tenant’s entrance at some point during 2015, which also allegedly caused tenant to lose its sidewalk cafe business. Tenant also alleges that the excessive noise, vibrations, odors and dust entering the premises as a result of the reconstruction work violated tenant’s right to quiet enjoyment. In taking all of the plaintiffs’ allegations as true, there is a viable cause of action that there was a wrongful acted committed by the landlord. Therefore, in this preliminary stage, plaintiff has adequately pleaded that defendant has breached the lease.
Second, a constructive eviction requires an abandonment of the premises without unreasonable delay. A delay in vacating the premises which is due to the tenant’s efforts to resolve the dispute without litigation of a constructive eviction claim is a reasonable excuse.
(Internal quotations and citations omitted).